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ZHANG v. SLATTERY

August 5, 1994

XIN-CHANG ZHANG, A72-762-145, Petitioner,
v.
WILLIAM SLATTERY, INS District Director for Detention and Deportation, ROSEANNE SONCHIK, INS Acting Assistant District Director for Deportation, and CHARLENE MONROE, INS Immigration Officer, Respondents.



The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.

 ROBERT P. PATTERSON, JR., U.S.D.J.

 Xin-Chang Zhang petitions this Court pursuant to 8 U.S.C. ยง 1105(a)(a) for a writ of habeas corpus to review the determinations of the Board of Immigration Appeals ("BIA") denying Petitioner's application for asylum and upholding Petitioner's placement in exclusion rather than deportation proceedings. For the reasons stated below, the BIA's determinations are remanded.

 BACKGROUND

 The smuggling ship Golden Venture ran aground off the beaches of Rockaway, Queens on June 6, 1993. Petitioner Xin-Chang Zhang, a passenger and a national of the People's Republic of China, swam ashore where he was taken into custody by law enforcement officials and subsequently transferred into the custody of the INS. Petitioner was placed in exclusion proceedings and, in separate hearings before an immigration judge, petitioned for asylum and moved to terminate his exclusion proceedings. Petitioner subsequently appealed to the BIA on both issues.

 Petitioner's Experience in China

 Petitioner states that in October 1991, one month after the birth of his first child, Petitioner was asked by local officials in Chang Le County in Fu Jian Province that he or his wife undergo sterilization surgery pursuant to China's one child per family policy. (Lenihan Aff. Ex. 31, PP 2, 11-12). Petitioner further states that local officials usually do not pressure people to undergo sterilization after having only one child, and that Petitioner was singled-out because he had had a quarrel with a powerful neighbor. Id. P 17. Petitioner states that he and his wife opposed sterilization because they wanted to have more children and feared the health effects of sterilization surgery. Id. P 18.

 Petitioner's Flight from China

 An immigration judge ("IJ") found that Petitioner was properly placed in exclusion proceedings because he had not made "entry" into the United States, (Lenihan Aff. Ex. 1 at 7), and denied Petitioner's application for asylum on the grounds that Petitioner had not established a well-founded fear of persecution within the meaning of the asylum laws. (Lenihan Aff. Ex. 2 at 30). On March 22, 1994, the Board of Immigration Appeals ("BIA") upheld both conclusions of the IJ. (Lenihan Aff. Ex. 3).

 DISCUSSION

 I. Standard of Review

 The BIA's conclusions of law are reviewed de novo. Sotelo-Aquije v. Slattery, 17 F.3d 33, 35 (2d Cir. 1994); Abedini v. United States Immigration and Naturalization Serv., 971 F.2d 188, 190-91 (9th Cir. 1992). "The BIA's factual findings . . . must be upheld if ...


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